Eligibility for Administering Clean Air Act
Programs

Fact Sheet

If a Tribe wants to administer a Clean Air
Act Program, what is the Tribe required to do?

The Tribe must:

Apply for and be approved by EPA as eligible for "treatment
in the same manner as a State" (often abbreviated as TAS). This
fact sheet covers the eligibility determination process, as outlined
in the Tribal Authority Rule (TAR). The TAR lists the provisions
of the Clean Air Act for which EPA may treat Tribes in the same
manner as States.

Develop and get approval from EPA of its Clean Air Act program.
A Clean Air Act program could be as simple as administering a
grant from EPA for the planning or development of an air program,
or it could be full implementation of a more complicated regulatory
program.

Who may apply for an eligibility determination?

Federally recognized tribes only.

Who will review the application?

The Regional Administrator for the EPA region in which the tribe is
located.

What is the benefit to the tribe of having this status?

Eligible Tribes may implement Clean Air Act Programs. They may:

Qualify for an EPA air program grant (called a section 105 grant)
that has a reduced "matching" requirement. For States, the match
requirement is 40%. However, the TAR provides Tribes a 5% match
in the first two years; the match may increase to 10% in subsequent
years. In rare instances, EPA may waive the match requirement
based on demonstrated financial hardship.

Qualify to administer a Clean Air Act program that applies throughout
the reservation, even to lands that are owned by non-Indians.
A Tribal regulatory program approved under the Clean Air Act would
also be enforceable (against pollution sources) by EPA and citizens,
as well as by the Tribe.

Qualify to be treated as an "affected State"under the operating
permits program, i.e., receive notice and an opportunity to comment
when neighboring States issue permits to facilities having the
potential to impact tribal lands. (You can learn more about requesting
"affected State" status in the Fact Sheet Requesting Treatment
as an "Affected State" Under Title V of the Clean Air Act.)

What are the criteria for eligibility to implement Clean Air
Act programs

To be eligible to administer a Clean Air Act program, a Tribe must
meet the following criteria:

be recognized by the U.S. Secretary of Interior;

have a governing body that is currently carrying out substantial
governmental duties and functions;

exercise functions that pertain to the management and protection
of air resources within the exterior boundaries of its reservation,
or other areas within the Tribe's jurisdiction; and

demonstrate capability to administer the Clean Air Act program
that it seeks to administer, consistent with applicable regulations.
This capacity demonstration will vary depending on the type of
program it seeks to administer. For example, the capacity needed
to demonstrate eligibility to be treated as an "affected State,"
is somewhat less strenuous than that needed to demonstrate eligibility
for purposes of running a more expansive air quality management
program.

What should a Tribe do if it believes it is eligible and is
interested in administering a Clean Air Act program?

A tribe must apply for an eligibility determination and submit a program
application. All applications must be submitted to the Regional Administrator
of the EPA Region in which the tribe is located.

What does an eligibility application contain?

The application must include the following information:

A statement that the applicant is an Indian Tribe recognized
by the Secretary of the Interior.

A descriptive statement demonstrating that the applicant is
currently carrying out substantial governmental duties and powers
over a defined area. (Discussed in more detail below.)

A descriptive statement of the Indian Tribe's authority to regulate
air quality. (Discussed in more detail below.)

A description of the capability of the Tribe to administer effectively
any Clean Air Act program for which the Tribe is seeking approval.
(Discussed in more detail below.) If EPA has already approved
your Tribe's eligibility under another program (such as a water
program), then your application can be streamlined. (Discussed
in more detail below.)

How does a Tribe demonstrate that the Tribe is carrying out
substantial governmental duties?

The Tribe submits a narrative statement that:

Describes the form of the Tribal government;

Describes the types of government functions currently performed
by the Tribal governing body such as, but not limited to, the
exercise of police powers affecting (or relating to) the health,
safety, and welfare of the affected population; taxation; and
the exercise of the power of eminent domain; and

Identifies the source of the Tribal government's authority to
carry out the governmental functions currently being performed

How does a Tribe describe its authority to regulate air quality?

For applications covering areas within the exterior boundaries of
the applicant's reservation, the statement should simply identify
with clarity and precision the exterior boundaries of the reservation
including, for example, a map and a legal description of the area.
Tribes do not need to demonstrate their authority over sources located
within a reservation.

For Tribal applications covering areas outside the boundaries of the
applicant's reservation the statement should include:

A map or legal description of the area over which the application
asserts authority;

A statement by the applicant's legal counsel (or equivalent
official) which describes the basis for the Tribe's assertion
of authority (including the nature or subject matter of the asserted
regulatory authority) which may include a copy of documents such
as Tribal constitutions, by-laws, charters, executive orders,
codes, ordinances, and/or resolutions which support the Tribe's
assertion of authority.

How can a Tribe demonstrate its capability to administer a
Clean Air Act program?

The Tribe should submit a narrative description of its capability.
The description could include some of the following:

A description of the Tribe's previous management experience
with Federal programs. For example, describe experience with programs
and services authorized by the Indian Self-determination and Education
Assistance Act, the Indian Mineral Development Act, or the Indian
Sanitation Facility Construction Activity Act;

A list of existing environmental or public health programs administered
by the Tribal governing body and a copy of related Tribal laws,
policies, and regulations;

A description of the entity (or entities) which exercise the
executive, legislative, and judicial functions of the Tribal government;

A description of the existing, or proposed, agency of the Tribe
which will assume primary responsibility for administering a Clean
Air Act program (including a description of the relationship between
the existing or proposed agency and its regulated entities); or

A description of the technical and administrative capabilities
of the staff to administer and manage an effective air quality
program or a plan which proposes how the Tribe will acquire administrative
and technical expertise. The plan should address how the Tribe
will obtain the funds to acquire the administrative and technical
expertise.

What if my tribe is a member of a Tribal Consortium?

Although the tribe must apply individually for eligibility and program
approval, a Tribe that is a member of a Tribal consortium may rely
on the expertise and resources of the consortium in demonstrating
that it is reasonably expected to be capable of carrying out its functions.
A Tribe relying on a consortium must provide reasonable assurances
that the Tribe has responsibility for carrying out necessary functions
in the event the consortium fails to.

If a Tribe has already established its eligibility under another
EPA program, what must be contained in the application for eligibility
under the Clean Air Act?

In this case, a Tribe would only need to reference the prior authorization
from EPA and submit information not previously submitted. Generally,
this means a Tribe would not need to submit further documentation
of the first two eligibility criteria: Federal recognition and performance
of substantial governmental duties. In some cases, however, the Tribe
may need to submit additional information on its authority to regulate
air resources within a geographic area. For more details on what needs
to be submitted, contact your EPA Regional Office.

If a Tribe has already established its eligibility to administer a
Clean Air Act program, does that mean the Tribe is eligible for all
Clean Air Act programs?

No. For each separate Clean Air Act program that a Tribe seeks to
administer, it must submit an eligibility application and must comply
with the program approval criteria. For example, if a Tribe establishes
its eligibility for the purpose of being an "affected State" under
the operating permits program, the Tribe would not automatically be
eligible to administer a grant with a reduced match under the section
105 program or administer a TIP. Although the Tribe may have been
approved for "affected State" status, the Tribe would need to establish
its eligibility (including capability) to administer a grant program
or a permits program. Another alternative is that a Tribe can establish
its eligibility for several Clean Air Act programs at the same time.
For example, a Tribe could establish its eligibility and receive EPA
approval to administer a TIP, apply for a 105 grant with a reduced
match, and receive "affected State" status at the same time. This
would involve demonstrating capability to administer each program
and submitting an approvable TIP and 105 grant application. In this
example, the capacity showing of the Tribe to administer the 105 grant
and the TIP may be sufficient to establish capacity to be an "affected
State" and no additional demonstration for the "affected State" program
would be required.

How can a Tribe demonstrate that it has adequate criminal
enforcement authority to enable it to administer a Clean Air Act program?

If the Tribe wants to administer a program that requires criminal
enforcement, the Tribe must include referral procedures providing
for the federal government to exercise criminal enforcement responsibility.
This must take the form of a Memorandum of Agreement between the Tribe
and EPA. For additional information on the criminal enforcement authority
provisions, contact your EPA Regional Office.

Does a Tribe have to establish its eligibility before applying
for Clean Air Act program approval?

No, the Tribal Authority Rule authorizes the EPA to review requests
for eligibility and program approvals simultaneously.

What does a Tribe need to do to receive approval for a Clean
Air Act program?

A request for program approval must contain all elements required
by law and regulation. These requirements vary depending on the specific
program being requested, e.g., operating permits programs or Tribal
Implementation Plans. It is important to remember a Clean Air Act
program could be as simple as administering a grant from EPA for the
planning or development of an air program or could be full implementation
of a more complicated regulatory program. Please contact your EPA
Regional Office for more information on specific program requirements.

What happens after a Tribe applies for an eligibility determination
and Clean Air Act program approval?

Within 30 days of receiving a complete application, the EPA will provide
a notice to appropriate governmental entities adjacent to the reservation.
While these governmental entities cannot comment on the authority
of the Tribe to regulate air resources within the reservation, these
entities will have 30 days to provide written comments regarding any
dispute about the boundary of a reservation. Appropriate governmental
entities are allowed up to 60 days to provide comment on the Tribe's
assertion of jurisdiction over non-reservation areas.

EPA Regional Offices will process Tribal applications in a timely
manner, and in general, they will be reviewed and processed similarly
to the way EPA would handle a similar State submittal. EPA's decisions
on eligibility and program approval are considered final Agency actions
that can be appealed and reviewed by the Federal courts.

Where are the Federal regulations that discuss Tribal eligibility
for administering Clean Air Act programs?

They are found in the Tribal Authority Rule which was published in
the Federal Register on February 12, 1998 (63 FR 7254) and codified
at 40 CFR parts 35 and 49. Copies may be obtained from the Internet,
from many public libraries, or from EPA's Regional Offices and Headquarters.